Monday, 21 December 2015

In the last days before Christmas, the Court has been adding a number of new factsheets on the European Convention of Human Rights to its website. Ever since the first factsheets were published online in 2010, this very useful collection of summaries of judgments, decisions and pending cases, organised around specific themes, the collection has provided guidance to both practitioners and academics, to both students and to the press. All for the purpose of increasing the effectiveness of the Convention system by making the Court's case-law more known and more widely available. Many of them are now available in range of languages. The five newest ones are:

Thursday, 10 December 2015

On 29 February and 1 March, the University of Oslo is organising the final conference of the large MultiRights project. This 5-year ERC-funded project investigated the legitimacy discussions around international human rights supervisory organs and the reform processes both at the UN and ECHR level. The final conference brings these strands of research together in an event entitled 'Reforms of the Individual complaint mechanisms in the UN treaty bodies and the European Court of Human Rights: Symptoms and Prescriptions – Mutual Lessons?' This is the organisers' conference abstract:

The conference will focus on analyzing and comparing the reform processes of the UN treaty bodies and of the European Court of Human Rights (ECtHR) aiming at finding mutual learning experiences. A particular focus will be given to the following issues:

Tuesday, 8 December 2015

On 1 June 2016, the University of Portsmouth School of Law, the European University Institute and the McCoubrey Centre for International Law of the University of Hull Law School will be organising a conference on the European consensus (EuC) method of interpretation of the European Court of Human Rights, in Florence. This is the call for papers:

Should prisoners have voting rights? Should terminally ill patients have a right to assisted suicide? Should same-sex couples have a right to marriage or adoption? Few would argue that such legally complex, and morally and politically sensitive issues are subject to universally accepted normative responses. When these questions arise within a European normative framework, the European Convention of Human Rights (ECHR, the Convention) is expected to act as a buffer for idiosyncratic national differences so that common “European” answers and standards of protection can emerge. The ECtHR undoubtedly plays a pivotal role, given its position as the last-word interpreter of the Convention.

Yet, the idea of a court, let alone an international court, establishing “new” rights or significantly expanding the scope and meaning of existing ones is, of course, inherently controversial. Presumably, it is for this reason, and in an attempt to increase its external legitimacy, that the ECtHR has developed the interpretative method of EuC. The Court will only recognise a pan-European -thus common to all 47 signatory parties to the ECHR- standard in sensitive areas of social activity, if it can trace their existence to the (loosely defined) consensus of national jurisdictions, as this is evidenced in the practice of the national legal systems of the ECHR states. If no consensus is diagnosed, states are given wider margin of appreciation. As a result, Europe may legitimately accommodate multiple human rights standards within its normative borders in the spirit of constitutional pluralism.

EuC, and its symbiotic relationship to other interpretative techniques, inevitably raise significant legal, political and philosophical questions. By resorting to EuC the Court may appear to pre-empt or respond to criticisms of judicial activism and claim that evolution in the interpretation of the Convention is, in fact, born out of the practice and implicit will of it signatory parties, which are all sovereign states. But this is hardly sufficient to dissuade concerns regarding the appropriateness of consensus analysis in identifying norms in a “special” area of law, such as human rights.

The purpose of this two-day international conference is to study the function of EuC, to identify its impact on European human rights law and beyond, and to assess its merits and shortcomings by exploring the following three main strands of analysis.

1. Conceptualisation of EuC: This theme invites contributions that will purport to define and conceptualise EuC, that is to say, to explain what EuC is, how it functions and what its results and consequences are. Papers may discuss the methods (both quantitative and qualitative) that could be used for the conceptualisation of EuC, the theoretical lens (such as constitutionalism, legal pluralism etc.) through which EUC may be explained, the interrelation between EuC and other methods of interpretation (such as margin of appreciation, dynamic/evolutive, systemic integration etc.), how EuC compares to, converges with or diverges from the methods employed by courts in analogous positions (such as regional international human rights courts or national constitutional courts, including the US Supreme Court) and, more generally, any line of enquiry that may contribute to the understanding of EuC.

2. Evaluation of EuC: This theme invites contributions that aim to critically evaluate EuC, its use, usefulness, appropriateness and normative outputs. We expect analysis in that strand to be primarily normative in nature and attempt to situate EuC in the broader context of questions within Public law, Constitutional law, International law and the Philosophy of Law, purporting to answer who has the authority to make constitutive decisions about civil and political rights in a liberal democracy and how these decisions should be made.

3. The “spill-over” effects of EuC: The last theme invites contributions that will examine the impact of EuC beyond the confines of the ECHR, both within national legal systems and at the inter/supra-national levels. Is EuC (or its altera pars, namely the margin of appreciation doctrine) employed in some shape or form in other legal systems? Could / should other courts in Europe, and first and foremost the Court of Justice of the European Union, make use of EuC? Are European Union (EU) human rights institutions using EuC?

We are inviting contributions that will engage with these axes of enquiry from any disciplinary perspective. Contributions may adopt a variety of doctrinal or disciplinary approaches, ranging from Jurisprudence and Legal Theory to Constitutional law and from Political Science and Philosophy to European Public law, broadly defined.

Submissions:

Interested scholars should submit an abstract of no more than 500 words by 31 January 2016. Abstracts should contain the title of the paper, and the name title and affiliation of the author(s). Please send abstracts using the Building Consensus on European consensus conference webpage. If you wish to discuss topics or ideas informally, please contact Dr. Panos Kapotas at panos.kapotas at port.ac.uk.

Speakers will be informed of acceptance of their papers by 12 February 2016, and will be expected to submit a full paper of around 8.000 words (including footnotes) by 1st May 2016. Presentations should be no longer than 20 minutes in duration. The Conference will take place at the European University Institute in Florence, Italy. Speakers will be required to meet the cost of travel and accommodation.

Friday, 4 December 2015

Exactly one month ago, on 4 November 2015, the European Convention on Human Rights had been in existence for exactly 65 years. In 1950, thirteen Council of Europe Ministers signed the treaty in the Palazzo Barberini in Rome. To commemorate that special moment and all the developments since, my alma mater, the Leiden Law School organised a special event in which all invited speakers were asked to deliver short, column-like, thought-provoking or even comical statements on the Convention and the Court, which were not allowed to exceed five minutes. Among the speakers were the President of the Dutch Supreme Court, the Dutch government agent at the Court, and a number of academic ECHR experts, including yours truly. Several of these contributions have now been published on the website of Leiden Law School and will also be published in the Dutch human rights review (Nederlands Tijdschrift voor de Mensenrechten). This was my own tongue-in-cheek addition to the line-up of speakers:

Jeckyll and Hyde in
Strasbourg

Having a split personality is usually not seen
as a positive thing. Not for the outside world, and not for the person itself.
Robert Stevenson’s novel about Dr Jekyll and Mr Hyde famously showed how the
constant shifting between personalities could almost destroy someone. A clear
and unified self-perception and image is the preferred style of identity in
almost all fields of life and practice, from organizational science to
marketing and psychology. Choices have to be made for the sake of clarity and
efficiency, but also for the mere functioning of a person or organization it
seems.

From this perspective, it is no surprise that
the history of the main guardian institution of the ECHR, the European Court of
Human Rights, which celebrated its 50th anniversary this month on 4
November, has been marked by an almost constant discussion about the Court’s
role and focus. The text of the Convention itself seemed straightforward enough
about the function of the Strasbourg Court. It states in Article 19 that the
Court was created “to ensure the observance of the engagements undertaken by the
High Contracting Parties.” But the ways in which this can be done has led to deep
soul-searching within the Court and a lot of debate outside it. Should the
Court focus on the role of provider of individual justice in the applications that
represent the large bulk of its docket, or should it, for principled or
pragmatic reasons take an altogether different, more constitutional role,
ruling on principles and structures rather than the nitty-gritty of each
individual case?

Looking back at the history of the Court’s work
in acting as guardian of the Convention, we can easily discern traces of both.
Most judgments have focused on very individualised instances of injustice. But
the Court started pointing at structural deficiencies in states early on, for
example in Marckx v Belgium. In
addition, there have been a few inter-state cases of course. And more recently,
in the last decade, state parties have nudged the Court into experimentation
leading away, at a slightly larger scale, from dealing with all individual
cases. The Convention since Protocol 14 includes a provision in Article 35 on
the possibility to dismiss cases in which the applicant did not suffer “a
significant disadvantage”. Not every single case merits discussion by the Court
anymore. However sparingly used, it departs from the principle of purely
providing individual justice to everyone coming to Strasbourg. In a more significant
move, the Court has developed the practice of the so-called pilot judgment
procedure, starting with the Broniowski v
Poland case in 2004.

Pilot judgments are a tool to be used when the
Court receives a large number of applications with the same root cause. The
Court then selects one, pars pro toto,
to deal with all comparable applications. In a pilot judgment, the Court both
identifies the structural human rights problem at stake and gives indications
to the state concerned that go beyond the individual case. These problems have
so far included overly long judicial procedures, property restitution
programmes, and prison conditions for example. This in effect gives the Court a
quasi-constitutional role through the lens of one case.

Often but not always, comparable cases pending
before the Court are “frozen”, leaving these other applicants in the
metaphorical cold, or eventually even sending their case back to the national
level. For them, the benefits of the Court taking a constitutional role may be
quite difficult to see. And sometimes, the pilot judgment procedure yields no
direct results at all, as the country at stake resists the Court’s more intrusive,
constitutional actions. This was the case in the British prisoners’ voting
rights saga. But when the pilot procedure works well, it not only saves the
Court work, it also goes beyond the combatting of symptoms and addresses the
causes of human rights problems more directly. In those instances the Court
weds its individual-justice personality with its constitutional one.

To conclude, the Court has to deal on a daily
basis with countries who constantly shift from nice dr Jekylls to evil Mr Hydes
and vice versa. The agility with which states oscillate between good and bad
human rights practice is obviously not something to be copied by the Court. But
I certainly wish for the Court in the coming years to become more at ease with
its double identity as both a guardian of individual justice and as a constitutional
actor. The two can and should co-exist. The Court itself has called the
Convention a living instrument. It is time the Court accepts something else:
that it has, itself, a living identity.

Thursday, 3 December 2015

Dear readers, it is my pleasure to introduce another guest post by one of this blog's regular commentators, Kanstantsin Dzehtsiarou, of the University of Liverpool. He has written a comment on the final report on the long-term future of the Court, an intergovernmental process in which he has been involved as an ad-hoc expert. For all updates and relevant texts on the continuing reform process, one can consult this page on the Council of Europe's website.

A
bird in the hand is worth two in the bush: reform of the European Court of
Human Rights

Kanstantsin
Dzehtsiarou

The
Steering Committee for Human Rights (CDDH) has recently published a revised
draft of the final report
on the longer-term future of the Convention system.
The report appears to be quite conservative in its tone and tries to preserve
the Strasbourg system rather than to call for any reforms. On the one hand, it supports
incremental changes of the system through the fine-tuning of the new procedures
provided by Protocol 14 and the incoming Protocol 15. On the other hand, it
does not respond to more fundamental challenges that the Court is facing such as its
declining ability to protect human rights in Europe effectively.

This
report is the outcome of the long and very inclusive work of the drafting group F
of the CDDH on the reform of the Court. This drafting group was established to
conduct preliminary work outlining the need for further reforms. its task was to audit the European Court of Human Rights (ECtHR) and suggest whether
any further reforms are needed. The Committee of Ministers of the Council of
Europe would then decide if any amendments to the Convention through new Protocols
are appropriate. The process that led to this report was unprecedented - the
Council of Europe made an open call for suggestions of the possible avenues for
reform and everyone could submit his or her proposals. Although this call has
resulted in a high number of submissions, their quality has varied substantially.

Some
of the suggestions from the open call were considered by the experts of the CDDH
who then identified key problematic areas in the functioning of the ECtHR:
national implementation of the Convention, the authority of the Court, the
execution and supervision of judgments, and the place of the Convention
mechanism in the European and international legal order. It seems that these
areas are indeed crucial in ensuring the Court’s sustainability. The proposals
made by the CDDH in these key areas are briefly discussed here.

Implementation
of the Convention on the national level, its embeddedness in the minds of the key
decision-makers - especially national judges - is crucial for the effectiveness of
the whole system. However, little more can be done to push states to further implement
the Convention. The CDDH suggests improving awareness among national
decision-makers about the standards of the Convention, seeking expert opinions
on the matters related to the standards of the Convention while passing
legislation on the national level. Of course, all these measures are to be
welcomed. However, their net value can be minimal in a situation where overall support
for the Convention is decreasing while the political will to improve the standards
of human rights protection domestically is declining. Having said that,
improving national attitudes towards the Convention is clearly beyond the mandate or reach
of the CDDH.

The
CDDH found that the authority of the Court is mainly challenged due to its huge
caseload and the quality of its case-law broadly understood. As to the former, the CDDH notes that the number of applications to the Court has decreased in
the last couple of years. This news is not necessarily good. The negative
publicity for the Court generated in some states in addition to the extremely
high number of inadmissible or not even registered applications has undermined
the enthusiasm of potential applicants for the Convention. Even applicants with
genuine and serious human right issues might no longer apply to the Court. Of
course, it is true that justice delayed is justice denied but the speed of
procedures has to be carefully balanced against the raison d'être of the Court and the Convention, namely protection of
human rights in Europe. The Brighton
Declaration has suggested the time
frame within which the ECtHR should deal with its cases: one year from
introduction to communication and two years from communication to judgment on
merits. At the same time the budget of the ECtHR has not been increased
appropriately to handle these time periods. The annual budget of the Court is below
70 million euros. In comparison, the annual budget of the Court of Justice of
the European Union with its much lighter docket of cases is more than 350
million. One should bear in mind that the ECJ does not have to deal with cases originating from such states as Russia, Ukraine, and Serbia which are responsible for a
substantial part of backlog of the ECtHR. If the member states really wish the
Court to become more effective, an increase of its budget is an absolute
necessity.

According
to the CDDH, the quality of the case-law of the ECtHR is instrumental for the continuing
authority of the Court. Here the experts of the CDDH considered improving the
quality of the judges of the ECtHR, the quality of its registry and the
consistency and coherence of the reasoning of the Court. For example, the issue
of the election of judges was discussed and in the last decade the rigor and
transparency of selecting of the candidates for the judicial positions at the
level of the Council of Europe has improved substantially. Having said that,
the key challenge for the quality of judges is at the national level and the
CDDH and the Council of Europe in general has very limited capacity to impact
on domestic decisions. None of the more radical changes were endorsed either
due to the financial implications or due to the implications on the speed of
the procedures under the Convention. One of the more far-reaching proposals is to
ensure erga omnes effect of the
judgments, meaning that the ECtHR judgments are not only binding on the
respondent state but also on all other Contracting Parties. It will be hard to
persuade the Contracting Parties to accept this proposal, but it could be
transformed into a suggestion to formally inform the Contracting Parties about
the important cases of the ECtHR. This suggestion was not supported by the
CDDH.

It
is true that the States’ proper implementation of the judgments of the ECtHR is
the key to its authority and reputation. However, the CDDH acknowledged that
those cases which are problematic in terms of execution cannot be implemented through
any new formal procedures. The CDDH suggests that an ad hoc approach should be maintained meaning that the Committee of
Ministers will have to develop strategies of execution on a case-by-case basis.
Perhaps this is a sensible approach. However, the Department of Execution of Judgments needs
appropriate resources to facilitate new demands. The number of lawyers working
in this Department is just not adequate to deal with the growing number of
cases required supervision.

Finally,
the CDDH has discussed the place of the Convention in the European and
international legal orders. This section is very brief and does not say much
beyond the fact that interaction between the European Convention and other
parts of the Council of Europe is unproblematic and interaction between the
ECHR and other instruments of international law should be further examined.

Overall, the report mostly preserves the status
quo. The key message of the post is that the Court is continuing business
as usual. While the open call for proposals of the Council of Europe is an undoubtedly
progressive and positive step, the fact that almost none of these proposals
were expressly supported questions the effectiveness of the procedure. The report
is very cautious and does not support any revolutionary ideas even those which
would require limited amendments to the Convention and limited implications to
the allocation of the resources. One can disagree about whether there is any need for more
fundamental changes to the system and what the results of these changes might
be. But what is absolutely clear is that the Court and the Department of Execution
require more resources to serve their functions efficiently and effectively.